Assumption of the Risk in Medical Malpractice and Dental Malpractice Cases

Assumption of the Risk is a legal term that means you knowingly assumed responsibility for what happened, because you agreed to take an unnecessary risk. Your doctor tells you that you can have an operation that will cure you right

away, but it is risky and has a 50% chance of a bad result. He explains the safe alternative is a long course of medical treatment. You want to get it over with and decide to go ahead anyway. You have assumed the risk and cannot hold the doctor responsible for what goes wrong.

You have been in a hospital with pneumonia and are feeling a lot better. The doctor tells you that you are not out of the woods and should remain in the hospital. If you go home, you could suffer a relapse or serious complications. But, you have urgent business and sign yourself out of the hospital against the doctor’s advice. You have assumed the risk, and if something goes wrong, you are solely to blame.

It is another way of stating that you have released the doctor from responsibility for the outcome of his treatment. You knew what you were doing and took your chances with your eyes wide open. This defense is usually trotted out when the doctor has done something unusually risky, and it has turned out badly. He says, “I explained all the risks to my patient, but she decided to go ahead anyway.”

Does it relieve the doctor of all responsibility? No. It does not excuse medical malpractice or dental malpractice and only excuses the doctor when he can show that your bad result was due to risks inherent in the treatment or arising out of your own actions, like not following his orders. If he warns you the treatment he is going to give you is risky and also commits malpractice, he cannot blame you for the bad result.

Why not? Because you cannot consent to a wrongful act. No matter what you agreed to, or how flagrantly you disregarded your doctor’s advice, if your injuries were due to his malpractice, he cannot lay the blame on you. It is not enough for the doctor just to tell you that something is risky. He also has to explain precisely what the risks and dangers are. He has to tell you about all the common risks, even if they are not serious, and about the uncommon risks if they have serious consequences.

It is not enough for the doctor to say you assumed the risk. He has to offer some proof that you consciously took the additional risks, such as a reliable witness or a written consent. This is because the courts assume you are what lawyers call the Reasonable Person, someone who would not take unreasonable risks or do foolish things. If the doctor wants to justify himself by saying you took an unnecessary risk, then he has the burden of coming forward with evidence to show that you did. You do not have to show that you did not.

What if the doctor says, “Everybody knows brain surgery is dangerous. The patient should have asked me about the risks. If he did not bother to or care enough to ask, then he was careless and assumed the risk.” How do you answer that? The same rule we just explained also applies here.

The Rule Is: A patient cannot be criticized for placing complete trust and confidence in the doctor. The doctor is the expert, who knows what the risks and dangers are. He has to offer the warnings, you do not have to ask.